According to 2012 figures of the National Crime Records Bureau (NCRB), out of the total prison population of 3,85,135 in India, nearly two-thirds were undertrials, i.e. they were serving time without having been proved guilty of the charges pressed against them. NCRB figures also show that the duration of stay of undertrials lodged in various jails may vary across jails in India, the timeframe of detention ranging from 3 months to above 5 years!

Much can be said about the circumstances of under-trial prisoners in Indian prisons: the possible duration of their time in prison, their access to legal aid, the severity of charges against them, their treatment inside prisons, living conditions in prisons and so on. However, what we look at in this article is the plight of undertrial prisoners who are non-native, or in other words, persons being tried or convicted outside their place or country of belonging.

Of the total prison population, 1.7 per cent were foreign nationals. As with the natives, of this too about 61 per cent were under-trial prisoners.

Nagina, 35, is a typical under-trial foreigner. When first jailed, Nagina would walk into the livelihood training center within the female prison, and quietly find a place on the mat next to her other inmate companions. Nagina’s lifeless expression was always (and easily) perceived as depression or boredom, both being common features among prisoners.

Nagina never cried, never shared, never raised questions, and never initiated. In a prison full of women, mostly restless with anxiety or finding petty reasons to bicker amongst one another, it was very easy for someone like Nagina to get lost.

Counselling in prisons should address this, but often does not. Sadly, the ‘house rule’ between old inmates and new prisoners is to never trust anyone belonging to the formal prison set-up, counsellors included. This is the first and most crucial barrier between the system (counsellors, welfare officers, NGO staff and even government-assigned legal aid lawyers) and prisoners that needs dismantling, so that progress can be made assisting prisoners with their issues.

Perhaps because of this cultural deficit of trust, a couple of months had already lapsed before the in-house prison counsellor discovered that Nagina originally belonged to Nepal, hailing from a village off the Indo-Nepal border. She had moved to Haryana shortly after her marriage. For years she had worked as a daily-wage labourer, and on most days her husband, Faisal, a rickshaw-puller, lay lifeless and inebriated off her earnings. One night, Faisal didn't return home and early next morning he was found dead in a gutter outside the village.

How Nagina was implicated in the murder of her husband is a case for the police files; however, from a human rights perspective, what is heart-wrenching is that no stock of her seven young children (the youngest being 3 years old) or her belongings was undertaken by the police when she was arrested. Nor was there any attempt at establishing contact with her relatives.

Nagina was arrested on the charges of the murder of her husband, had spent nearly six months as an undertrial prisoner without having met or spoken to a single person from her family and had not received any news since her arrest regarding the well-being of her seven children. Her behaviour in the prison could easily be explained by the trauma of separation from them, and not knowing what became of them after her arrest.

Nagina is not alone in her ordeal. Rubina and Haseena, also undertrial prisoners charged with petty theft, were immigrants from Bangladesh and were working as domestic help in a posh locality of Gurgaon, Haryana. The two of them were sisters-in-law and were imprisoned with their children (four in all). In the absence of any support from their “service provider” -- the domestic help agency -- they were unable to contact their families or acquire sufficient money for their bail. They have been undertrial prisoners with their children for over 18 months now.

In another of many such cases, Rita and Neha, both arrested from a city night club for allegedly soliciting customers for sex, have a long wait ahead for justice. Ironically, the men who brought Rita and Neha from Nepal to the city were never arrested, though it is very possible that the girls were victims of sex-trafficking,

These women, like many other foreign national undertrials in India are forgotten and left to languish in prisons for months, without being proven guilty of any crime.

Repatriation of prisoners

The Indian Prison system has provisions to take special care of imprisoned mothers and their children. (See an earlier article on this in India Together). And foreign prisoners are entitled to access the Repatriation of Prisoners Act, 2003. This law was enacted to provide for the transfer of certain prisoners from India to a country or place outside India and for the reception in India of prisoners from a country or place outside India. Evidently, it is of critical significance where non-native prisoners are concerned.

However, under the 10-year-old Act, India has this agreement only with eighteen nations, which include Bulgaria, Cambodia, Egypt, France, Bangladesh, South Korea, Sri Lanka, Iran, Saudi Arabia, United Arab Emirates, Maldives, Israel, Thailand, Turkey and Bosnia & Herzegovina; most recently Canada, Brazil,Qatar and Russia have been added to this list.

India has not seen repatriation in big numbers ; only 19 prisoners have so far availed the facility of serving their sentence in their native countries under this agreement. Astonishingly, a news report in November 2013 even stated that almost 80 per cent of prisoners of Indian origin in UAE prisons, who were eligible to be repatriated to India, prefered to stay back as they felt that they had better facilities available to them there itself.

In 2007 the Indo-Pak Joint Judicial Committee was formed, comprising of eight retired judges, four from India and Pakistan each, who were entrusted with the responsibility of investigating the situation of civilian prisoners in jails of the other nation. They were also to obtain and facilitate their release, especially of fisherman who were imprisoned for straying from territory waters.

This committee stressed that the Consular Access Agreement of May 2008 signed between India and Pakistan should be implemented in full flavour, whereby Consular access to the prisoner had to be provided within three months of the arrest and repatriation had to take place within one month of confirmation of national status and completion of sentencing. The Committee also recommended putting in place a mechanism for ensuring compassionate and humanitarian consideration for women, juvenile, mentally challenged, old-aged offenders and all those prisoners suffering from serious illness and permanent physical disability.

This Committee was also of the view that prisoners involved in minor offenses like violation of Foreigners Act, visa violation and inadvertent border crossing deserve compassion from both sides.

Later, the Committee expressed satisfaction towards the outcome of the Consular Access Agreement of May 2008 between the two countries. A number of prisoners were exchanged on 1 January 2013; the release of 684 Indian fishermen and 30 Indian civil prisoners by Pakistani authorities and 96 Pakistani fisherman and 59 Pakistani civil prisoners by Indian authorities between January 2012 until May 2013 was noted as a success.

In May 2013, the members of the Committee visited three Pakistani prisons, similarly, in October 2013 the Committee also completed its visit to three Indian jails.During both visits the Committee’s objective was to examine the living conditions of the prisoners and their prison records in order to hasten the process their release. Currently India awaits the repatriation of 535 Indian prisoners who are languishing in Pakistani jails including 11 juveniles and 483 fisherman; 90 of them have already completed their sentence. The Committee hopes to expedite the release of Pakistani prisoners from Indian jails too.

While there have been some rough patches between the two countries in the execution of the agreement, there is still substantial scope for fairness and justice to be meted out to the many imprisoned non-natives in both countries.

The fate of the less fortunate

However, Nagina’s circumstantial vulnerabilities - of being a mother to seven children, implicated on charges of murder, the possibility of her being charged of violation of the Foreigners Act 1946 and having no legal or familial support - only make her more defenseless in the face of the justice system.

After Nagina was encouraged to appeal to the hearing magistrate to make enquires about her children, she was informed that a search of her home in Haryana had not yielded any information of their whereabouts. There was no news from her family and a whole year had passed by the time Nagina was awarded a life sentence term for the murder of her husband. She now has no means to find out where her children are, much less to meet them.

An official application requesting that Nagina be repatriated to a prison in Nepal, so that she can serve her term closer to her family, was made to the jail authorities. After much back and forth, she was informed that neither did she have adequate proof of identification to claim she was Nepalese, nor did India have a repatriation agreement with that country.

Unfortunately, repatriation of prisoners between India and bordering countries such as Nepal and Bangladesh or Bhutan have been mostly seen in cases of trafficking or when refugees have unintentionally crossed borders. However, conviction rate of traffickers has been dismally low, with the innocent victims being criminalized instead.

The Haryana jail authorities even requested that Nagina should be transferred to a jail in Bihar, so that her family could still reach her without considerable travel if they wanted. But this last option available to her also failed when an unofficial response stated that there were insufficient budgets to cover the cost of an additional prisoner at the proposed jail in Bihar.

Nagina, like many others who have been forgotten behind the gritty bars of prison, has now lost all hope. She may never be able to afford bail, access temporary parole or secure premature release. Her experience is a stark reminder that the fate of such undertrial or convicted persons from other countries is sealed in anonymity and oblivion under the prevailing conditions of prison management in India.

Ruchika Nigam07 February 2014

Ruchika Nigam holds a Masters in Criminology and Criminal Justice and has worked extensively in the field of human rights and prison reforms. Her current role with Apne Aap Women Worldwide involves advocacy on sex trafficking in India.

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